Citation Nr: 0001747 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-07 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of the currently assigned 10 percent for a service-connected left knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. A. Mancini, Associate Counsel INTRODUCTION The veteran served on active duty from February 1993 until March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), located in St. Petersburg, Florida. In November 1997, the Board remanded this case so that additional development of the evidence could be accomplished. This was done, and in August 1999, the RO issued a Supplemental Statement of the Case which continued to deny the veteran's claim. The veteran's claims folder was then returned to the Board. The case is now ready for Board review and a decision on the merits. FINDING OF FACT The competent evidence of record shows that the veteran's left knee is stable with full range of motion. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking an increased rating for his service- connected left knee disability, which is currently evaluated as 10 percent disabling. In the interest of clarity, the Board will initially discuss pertinent law and VA regulations. The factual background of this case will then be reviewed. Finally, the Board will analyze the veteran's claim and render a decision. Relevant law and VA regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities ("Schedule"), 38 C.F.R. Part 4 (1999). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Governing regulations to include 38 C.F.R. §§ 4.1, 4.2 (1999) require evaluation of the complete medical history of the veteran's condition. Limitation of motion of the knee is addressed in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees; 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees; 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; 30 percent rating where extension is limited to 20 degrees; 40 percent rating where extension is limited to 30 degrees; and 50 percent rating where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. Words such as "slight", "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (1999). It should also be noted that use of terminology such as "mild" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated by the Board in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1999). The provisions of 38 C.F.R. §§ 4.45 and 4.59 (1999) consider whether there is crepitation, more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disease. It is the intent of the Schedule to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) ("the Court") held in DeLuca v. Brown, 8 Vet. App. 202 (1995), that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Factual background Service medical records show that the veteran sustained a left knee injury in December 1994 while playing football. Diagnoses includes ligament strain, medial collateral ligament strain, and hamstring pull. X-rays taken in December 1994 revealed no fracture, dislocation or joint effusion. Service medical records show that the veteran reinjured his left knee in January 1995, and reflect findings and diagnoses, to include left knee sprain; and ligament lax, lateral collateral ligament. January 1995 service medical records note negative edema, erythema, and crepitus; full active range of motion; and 5 degrees - 115 degrees with pain at full flexion. A January 1995 x-ray report revealed no evidence of fracture, dislocation or destructive osseous change. A normal left knee was diagnosed on x-ray. The veteran submitted an application for compensation in March 1995, just after his discharge from service. In April 1995, the veteran underwent a VA orthopedic examination with complaints of left knee swelling, "giving out," and tightening. The veteran reported pain in his left knee if he attempted to bend it beyond the 90 degree mark. He noted some crepitation in the knee, but indicated that he was presently taking no medications. The VA examiner noted that the veteran did not appear to be in any distress until he attempted to walk. He limped, favoring the left lower extremity, and did not completely straighten his left knee when walking . The veteran was tender over the medial joint space and range of motion of the left knee was from zero degrees extension to 110 degrees of flexion. There was no evidence of crepitation on flexion and extension movements of the left knee. The veteran's collateral and cruciate ligaments were noted to be intact. The veteran's left knee measured 35.5 centimeters ("cm") in circumference compared to the right knee which measured 33.5 cm. X-rays of the left knee failed to reveal any orthopedic abnormality of significance. The VA examiner diagnosed probable tear, medical meniscus, left knee. The veteran underwent magnetic resonance imaging ("MRI") in April 1995 which revealed a tear of the posterior horn of the lateral meniscus. The MRI further showed minimal increased signal in the posterior horn of the medial meniscus, not consistent with a tear, but most likely representing some degenerative change. In his August 1995 notice of disagreement, the veteran reported that his knee gave out on him frequently, and buckled to the side causing almost continuous swelling. A VA outpatient record dated in August 1995 noted the veteran's complaints of his knee giving way and swelling to the extent that it was painful. On examination, the left knee had minimal swelling, and no popping, clicking or significant instability. The knee was tender at the medial joint. The VA examiner noted that the veteran was unable to completely flex the left knee. The veteran was diagnosed with internal derangement of the left knee. In his October 1995 substantive appeal, the veteran stated that he was given a knee brace due to the severity of his condition. A November 1995 VA outpatient record noted the veteran's complaints of weakness to the left knee when he was not wearing his brace. The veteran reported improvement in left knee pain with the knee brace and Feldene, and less swelling. The VA examiner noted the abnormal MRI of the left knee, and diagnosed tear of the posterior horn of the medial meniscus; degenerative medial meniscus, and questionable partial tear of the anterior cruciate ligament. December 1995 VA medical records noted the veteran's full joint range of motion and tight hamstrings. The veteran reportedly stated that he could feel less tightness just from some exercise demonstrations. The examiner discussed strengthening exercises with the veteran. Also in December 1995, the veteran complained of left knee pain, swelling, and "giving way." The December 1995 VA medical report noted that the veteran had no instability when wearing the knee brace, but complained of the knee "giving way" when not wearing the brace. On examination, the range of motion was 5/0/125 degrees, and pain was noted with full flexion. X-rays were normal and the MRI showed an anterior cruciate ligament tear. In February 1996, a VA examiner diagnosed ruptured anterior cruciate ligament. The veteran underwent surgery at a VA hospital in February 1996 for left patellar tendon autograph anterior cruciate ligament reconstruction. His admission physical examination was noted to be unremarkable. Examination of the left knee showed a positive Lachman's test, positive anterior drawer sign and positive pivot shift. The posterior drawer sign was negative. The veteran's knee was stable to varus and valgus stress at zero and 30 degrees. There was joint line tenderness on range of motion of 5 degrees hyper-extension and zero to 140 degrees of flexion. The veteran's discharge diagnosis was left anterior cruciate ligament tear. Upon discharge from the hospital, the veteran was noted to have good rehabilitation potential. In November 1997, the Board remanded this case, in essence because there was little evidence eof record concerning the condition of the veteran's left knee after the February 1996 surgery. June 1998 and June 1999 x-rays revealed findings consistent with anterior cruciate ligament repair. In June 1999, the veteran underwent a VA joints examination. The report noted that the veteran's postoperative course was uneventful and that he had been discharged from further care by the VA medical center. The veteran reported that he was employed at a warehouse where he did a lot of truck driving. He indicated that he did a lot of squatting on the job and his left knee felt tight. He reported some crepitus when he squatted but had no complaints of pain, instability or locking. He indicated that if he had to do any excessive squatting and kneeling at work, the left knee may swell. This swelling reportedly occurred on an average of one time per month and usually went down overnight. On physical examination, the veteran did not appear to be in any acute or chronic distress. He reportedly walked with a normal gait and could squat fully without pain. There was no tenderness around his incision, and no localized tenderness around the joint spaces or on patellar compression. The veteran had full range of motion of the left knee, but with some mild crepitus present. Collateral ligaments were intact and cruciate ligaments were stable and intact. There was no laxity in the anterior cruciate ligaments. Reflexes and sensation were intact. Both knees measured 38 cm in circumference. The veteran was diagnosed with status post anterior cruciate ligament reconstruction left knee. Analysis Initial matters - well groundedness of claim/duty to assist/standard of proof A claim for an increased rating is regarded as a new claim and is subject to the well-groundedness requirement. 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). When a veteran is awarded service connection for a disability and appeals the RO's rating determination, the claim continues to be well grounded as long as the claim remains open and the rating schedule provides for a higher rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The veteran's claim for an increased evaluation of his service connected left knee disability is therefore well-grounded within the meaning of 38 U.S.C.A. § 5107(a). After a well-grounded claim has been submitted, VA has a duty to assist the veteran in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107. In this case, the veteran's claim was remanded by the Board in November 1997 for additional development of the evidence. The veteran was afforded a current VA examination and there is medical evidence of record in the form of VA examination reports. There is no indication that there are additional records that have not been requested. The Board is of course cognizant of a contention of the veteran's representative in a December 1999 written brief presentation to the effect that the June 1999 VA examination was inadequate. The representative stated that the examination report "does not contain sufficient detail to adequately evaluate the severity of the service-connected left knee condition." The written brief presentation did not elaborate on that contention. In the opinion of the Board, the report of the June 199 VA examination, which has been reported in detail above, was thorough and indicated that a complete history was taken, range of motion studies were done, the leg was measured and X-rays were taken. For these reasons, no further development of the claim is required to comply with the VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, supra, 1 Vet. App. at 54. Application of VA Schedule for Rating Disabilities i. Rating under Diagnostic Code 5260 The veteran is currently rated as 10 percent disabled for his service-connected left knee disability pursuant to 38 C.F.R. 4.71a, Diagnostic Code 5260. Diagnostic Code 5260 provides for a 20 percent rating where flexion is limited to 30 degrees and a 30 percent rating where flexion is limited to 15 degrees. The Board concludes that the evidence of record does not demonstrate that flexion of the veteran's left knee is limited to 30 degrees to warrant a 20 percent evaluation or that flexion is limited to 15 degrees to warrant a 30 percent rating. Indeed, the June 199 VA examination characterized the range of motion of the veteran's left knee as full. The available medical evidence demonstrates that the veteran's flexion has been without any significant limitation since service. A December 1995 VA medical report noted full flexion. The veteran's February 1996 admission physical examination noted zero to 140 degrees of flexion. For these reasons, the Board concludes that a rating in excess of the currently assigned 10 percent is not warranted under Diagnostic Code 5260. ii. Rating under other Diagnostic Codes The Board has given consideration to evaluating the veteran's service-connected disability under a different Diagnostic Code that is potentially relevant to this case. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board has also considered the potential application of 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5261 provides for a 20 percent rating where extension is limited to 15 degrees; 30 percent rating where extension is limited to 20 degrees; 40 percent rating where extension is limited to 30 degrees; and 50 percent rating where extension is limited to 45 degrees. As noted in the discussion of Diagnostic Code 5260, the available medical evidence demonstrates that the veteran's left knee extension is without any significant limitation of motion. Accordingly, the Board concludes that an evaluation in excess of 10 percent is not warranted under Diagnostic Code 5261. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, other impairment of the knee, slight recurrent subluxation or lateral instability warrants a 10 percent rating; moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The Board notes that the evidence of record does not establish that the veteran had subluxation of his knee. With respect to instability, the veteran complained of his knee frequently "giving out" prior to his February 1996 surgery. The April 1995 VA examination report did not indicate that the veteran's left knee was unstable. Four months later, an August 1995 VA outpatient treatment record noted no significant instability of the left knee. In February 1996, the veteran's left knee was stable to varus and valgus stress at zero and 30 degrees. During the most recent June 1999 VA examination, the veteran reported no instability of the left knee, and walked with a normal gait. Cruciate ligaments were noted to be stable. In short, the medical evidence described in detail above demonstrates little if any objective evidence of left knee instability, either before or after the February 1996 surgery. The Board concludes that the veteran does not meet the criteria for moderate or severe impairment of the knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board thus concludes that the available evidence of record demonstrates that the veteran's disorder is more appropriately rated under Diagnostic Code 5260 rather than Diagnostic Codes 5257 or 5261. iii. DeLuca considerations In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court has also held, however, that where a diagnostic code is not predicated on limitation of range of motion, such as Diagnostic Code 5257, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In this case, the veteran's disability evaluation of 10 percent is based on 38 C.F.R. § 4.71a, Diagnostic Code 5260, which is based on limitation of flexion. Therefore, pursuant to the Court's holding in Johnson, 38 C.F.R. §§ 4.40, 4.45 and 4.59 are for consideration in this case. The Board has considered all medical evidence of record in its analysis of the DeLuca factors. The most recent June 1999 VA joints examination indicates that the veteran works at a warehouse where he does a lot of truck driving and squatting. Significantly, he reports no pain, instability or locking of the knee. There is neither evidence of atrophy nor of incoordination or fatigability. Notably, the veteran walks with a normal gait and can squat fully without pain. He has full range of motion of the left knee. The June 1999 VA report demonstrates little, if any, significant functional loss to warrant an increased evaluation based on 38 C.F.R. §§ 4.40 and 4.45. A review of the medical evidence prior to June 1999 shows that the veteran complained of some crepitation, swelling, "giving out," and pain in his left knee. Of significance, in December 1995, flexion was noted to be full, and although pain was noted on full flexion, there were no limitations noted due to pain. For the reasons stated above, the Board concludes that the veteran has not demonstrated any additional significant functional loss to warrant an increased evaluation based on 38 C.F.R. §§ 4.40 and 4.45. iv. Fenderson considerations The veteran's left knee has been rated as 10 percent disabled effective from the date of his initial claim, March 8, 1995. In Fenderson v. West, supra, it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Particularly because the veteran's knee was repaired in February 1996, with apparently good results according to the June 1999 VA examination, the Board has explored the possibility of assigning a higher rating from March 1995 to February 1996 under Fenderson. However, as discussed in detail above, there was no objective evidence of symptomatology, including instability or limitation of motion, which would lead to the assignment of a higher rating under any applicable diagnostic code before the February 1996 surgery. In so deciding, the Board has placed particular weight on the pre-surgery physical examination, which did not reveal instability and indicated essentially full range of motion. Thus, although the torn left anterior cruciate ligament was repaired, it appears that the greatest benefit was in alleviation of pain. As discussed above, DeLuca considerations have been applied both before and after the surgery and there is no evidence of pathology due to the pain which would warrant the assignment of a higher rating under 38 C.F.R. § 4.40 and 4.45. v. Esteban considerations The veteran's representative, in the December 1999 written brief presentation, suggested that a separate disability rating be awarded for a surgical scar. Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (1999); Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999); Fanning v. Brown, 4 Vet. App. 225 (1993). The June 1999 VA examination noted an old healed incision on the anterior aspect of the veteran's left knee. No disability associated with this old surgical scar was identified by the examiner, and no pertinent diagnosis was made. In the absence of a disability, service connection may not be granted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The mere presence of a surgical scar does not constitute a disability; moreover, the veteran and his representative have pointed to no specific disability associated with the surgical scar. Accordingly, a separate disability rating will not be assigned. Conclusion In conclusion, after reviewing the evidence of record, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 10 percent for the veteran's left knee disability. The benefit sought on appeal is accordingly denied. ORDER A disability rating in excess of 10 percent for the veteran's left knee disability is denied. Barry F. Bohan Member, Board of Veterans' Appeals The Board points out that the November 1997 remand noted that the veteran was scheduled to undergo physical therapy at a private clinic in Jacksonville, Florida following his left knee surgery. The claims file did not contain any records regarding this post-surgical physical therapy. The Board, therefore, requested that the RO obtain the names and addresses of all medical care providers, VA and private, who treated the veteran's left knee since the February 1996 surgery. In March 1998, the RO sent a letter to the veteran requesting such information. The record does not show that the veteran responded to the RO's letter and the private physical therapy records remain absent from the claims folder.